Q&A: Intermittent FMLA leave and short-term disability

Question

My company follows the rolling 12-month period for calculating leave under the federal Family and Medical Leave Act (FMLA). My employee started intermittent FMLA on 4/1/23 to care for her daughter, who has a qualifying medical condition.

The employee injured herself outside of work on 1/1/24. She has been out on short-term disability (STD) for 20 days so far.

Can I use the time that she is under this STD claim to also fall under the FMLA time she is also using to care for her spouse? Can two qualifying events run together under one FMLA claim? Or do I have to create a separate FMLA claim for the employee’s care?

Answer

The FMLA provides eligible employees with 12 weeks of unpaid leave within a 12-month period for reasons such as their own serious health condition and to care for a family member with a serious health condition. An employee may have more than one event for which they need FMLA leave during a 12-month period. The total leave entitlement of 12 weeks does not vary, no matter the number of cases. Employees do not receive a new 12-week allotment of leave for each qualifying event, at least not within the same 12-month period. Instead, they may only use up to a total of 12 weeks of covered leave within the 12-month period for all events. Each different condition (reason for leave) must be certified separately.

Leave taken pursuant to a disability benefit plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under the FMLA, if the situation otherwise meets the criteria for FMLA leave. In such a case, the employer may designate the leave as FMLA leave and count the leave against the employee’s FMLA leave entitlement.

While your employee’s intermittent FMLA leave to care for her daughter and her continuous FMLA leave would be considered two separate leaves, this does not mean she is entitled to more than 12 weeks in a 12-month period. Instead, she would be entitled to 12 weeks consisting of time taken for both leaves combined.

Once an employee has used up the 12 weeks of leave under the FMLA, if the employee continues to need leave because of a continued medical condition that causes the employee to continue to be unable to work, the employer may have additional obligations to continue the leave of absence under the Americans with Disabilities Act (ADA). Although the ADA is not a leave law, a leave of absence may be an accommodation if taking the leave allows the employee to seek treatment and return to work able to perform the essential functions of the job. See 42 U.S.C. §12111(9)(B); EEOC Technical Assistance Manual, 7.10. The Equal Employment Opportunity Commission (EEOC) provides guidance regarding leave as an ADA accommodation and undue hardship, from its “Employer-Provided Leave and the Americans with Disabilities Act,” online here.

The EEOC guidance indicates that in assessing undue hardship, an employer may consider leave already taken — whether pursuant to a workers’ compensation program, the FMLA (or similar state or local leave law), an employer’s leave program, or leave provided as a reasonable accommodation.

Under the ADA, an employer may consider whether granting a leave would cause undue hardship to the employer’s business. According to guidance issued by the EEOC, an employer may consider “the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date)”

The EEOC guidance also provides the following information:

“In many instances an employee (or the employee’s doctor) can provide a definitive date on which the employee can return to work (for example, October 1). In some instances, only an approximate date (for example, “sometime during the end of September” or “around October 1”) or range of dates (for example, between September 1 and September 30) can be provided. Sometimes, a projected return date or even a range of return dates may need to be modified considering changed circumstances, such as where an employee’s recovery from surgery takes longer than expected.

None of these situations will necessarily result in undue hardship, but instead must be evaluated on a case-by-case basis. However, indefinite leave — meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”

Note that additional information about FMLA leave can be found on HR Hero via the Federal and State Topic analysis tool. While some states have their own family leave laws, Tennessee does not.

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